25 October 2016

The Unified Patent Court (UPC) has issued a statement that recruitment of UPC judges has been delayed in view of the result of the UK referendum on EU membership. Following the referendum result, it is unclear if or when the UK ratification required at present to bring the UPC agreement into effect will take place. As a result, the judicial recruitment process for the UPC has not proceeded to the next phase of calling candidates for interview. This delay is likely to remain in place until it is clearer when the UPC project might progress (with or without the UK).

The Opposition party in the UK parliament has recently submitted 170 questions to the Government regarding the UK 's exit from the EU. Two questions (nos 110 and 111) are included which relate to the UPC. Briefly, these are (i) will the UK ratify the UPC agreement and (ii) if the UPC goes ahead, will the central division of the UPC for Human Necessities remain in London? It is unlikely that the Government will provide a direct answer to these questions in the near future, but it does indicate that there is political awareness of the issue.

In a further development, legal advice has been sought from leading UK barristers about the future of the UPC and the UK 's role in it. The advice concludes on balance that legally it would be possible for the UK to participate in the UPC after leaving the EU, but the possibility of the CJEU reaching the opposite conclusion was not ruled out.

In practice, the UK 's participation would require the UK to agree to Chapter IV (Part I) of the UPC Agreement which provides for the primacy of EU law, which would appear to have been ruled out by Theresa May when she said that we are not leaving only to return to the jurisdiction of the European Court of Justice.